VA Supreme Court
LOVITT, et al. v. WARDEN, SUSSEX I STATE PRISON
Sep 12, 2003
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WARDEN, SUSSEX I STATE PRISON
PRESENT: All the Justices
Record No. 012663
ROBIN MCKENNEL LOVITT
WARDEN, SUSSEX I STATE PRISON
OPINION BY JUSTICE BARBARA MILANO KEENAN
September 12, 2003
UPON A PETITION FOR A WRIT OF HABEAS CORPUS
The petitioner, Robin M. Lovitt, was convicted by a jury of the capital murder of Clayton Dicks in the commission of robbery, in violation of Code ? 18.2-31, and of robbery, in violation of Code ? 18.2-58. The circuit court sentenced Lovitt in accordance with the jury verdict to death for capital murder and to life imprisonment for robbery. We affirmed the circuit court’s judgment in Lovitt v. Commonwealth, 260 Va. 497, 520, 537 S.E.2d 866, 881 (2000), cert. denied, 534 U.S. 815 (2001).
Under Code ? 8.01-654, Lovitt filed a petition for a writ of habeas corpus against the warden of the Sussex I State Prison (the warden). Lovitt alleged, among other things, that the destruction of certain trial exhibits after his convictions were affirmed by this Court violated his right of due process by preventing adequate review of his habeas corpus petition. He also alleged that the prosecution suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that he was denied effective assistance of counsel at trial. We entered an order directing that the Circuit Court of Arlington County (the circuit court) conduct an evidentiary hearing under Code ? 8.01-654(C) concerning all issues raised in Lovitt’s habeas corpus petition. The circuit court conducted an evidentiary hearing (habeas hearing) pursuant to our order and submitted a written report stating its findings of fact and recommended conclusions of law. See Code ? 8.01-654(C)(3).
In Lovitt, we stated in detail the facts relating to the convictions and penalties imposed on Lovitt for the capital murder and robbery charges. 260 Va. at 502-08, 537 S.E.2d at 870-73, 879. We will recite those facts from our previous opinion that are relevant to the present habeas corpus proceedings:
[I]n the early morning hours of November 18, 1998, Clayton Dicks was stabbed six times in the chest and back while working during the overnight shift at Champion Billiards Hall (the pool hall) in Arlington County.
A few months before the killing, Lovitt worked as a cook at the pool hall on an evening shift that ended when Dicks arrived to begin the overnight shift. Amy Hudon, the manager at the pool hall, testified that about two months before Dicks was killed, she had trouble opening a cash register drawer near a pool table and asked Lovitt to help her open the drawer. Lovitt opened it by “wedging” a pair of scissors into the drawer’s latch. About two months before the killing, Lovitt quit working at the pool hall.
. . . .
[On November 18, 1998,] Dicks arrived at the pool hall between 1:30 and 2:00 a.m. The other employees present when Dicks arrived had left the pool hall by 3:00 a.m., leaving Dicks as the sole employee on the premises. . . .
About 3:25 a.m., Jos? N. Alvarado and Carlos Clavell entered the pool hall and saw two men arguing behind the bar. Alvarado testified that one man was shorter than the other, and that the shorter man repeatedly shoved the taller man, who was wearing an apron. Alvarado stated that he and Clavell watched as the shorter man stabbed the taller man six or seven times with a silver-colored weapon. Alvarado saw blood on the taller man’s apron and watched as the taller man fell to the floor behind the bar. Clavell testified that he heard the taller man begging the shorter man to stop attacking him. Both Alvarado and Clavell saw the assailant repeatedly kick the man who had fallen to the floor.
Alvarado and Clavell immediately ran from the pool hall to a service station, where Alvarado telephoned the “911” emergency response number and reported what they had seen. Although Alvarado could not identify Lovitt as Dicks’s assailant at the preliminary hearing held in this case, Alvarado testified at trial that he was about “80% certain” that Lovitt was the assailant.
When police and emergency medical personnel arrived at the pool hall in response to Alvarado’s telephone call, they found Dicks lying on the floor behind the bar in a pool of blood. Dicks was alive but was unable to speak and was taken by helicopter to a nearby hospital. The multiple stab wounds prevented his heart from functioning, and he died while awaiting surgery.
Dicks had been stabbed six times, five times in the chest and once in the back. Four of these wounds were lethal. Dicks also suffered two areas of internal hemorrhage on both sides of his head, as well as external abrasions on both shoulders and on his left knee.
The police recovered from the pool hall a cash register that was lying on the floor near where Dicks was found. The register was broken into pieces, the cash drawer had been removed from the register and was missing, and a torn piece of a ten-dollar bill was found nearby. A pair of scissors with orange handles that was usually kept in a container on the bar was missing. A police canine unit found an orange-handled pair of scissors bearing blood lying open in the woods about 15 yards behind the pool hall.
Warren A. Grant, Lovitt’s cousin, testified that Lovitt arrived at Grant’s home in the early morning hours of November 18, 1998. Grant lived about a quarter of a mile from the pool hall in a residential area located on the “other side” of the woods. Grant stated that Lovitt knocked on his door sometime between 1:30 and 3:00 a.m. Lovitt . . . entered the house carrying what looked like a large, square, gray metal box. After Lovitt unsuccessfully tried to open the locked box, Grant eventually opened it by using a screwdriver to “pop” some of the screws securing the box. Lovitt removed money from the opened cash register drawer and divided the cash between himself and Grant. Lovitt left the cash register drawer with Grant and instructed him to “[g]et rid of [it].” A few days later, Grant began cutting the cash drawer into pieces with tin snips and put them in a bag.
. . . .
On November 20, 1998, Arlington Detective Noel E. Hanrahan obtained pieces of the cash register drawer from Grant. Four days later, Lovitt was arrested and charged with the present offenses. . . . When Officer Stephen Ferrone collected Lovitt’s clothing at the jail, Ferrone asked a detective whether he needed to seize Lovitt’s jacket. Ferrone testified that, upon hearing this question, Lovitt stated, “I wasn’t wearing it when it happened.”
Julian J. Mason, Jr., a forensic scientist employed by the Virginia Division of Forensic Science, qualified as an expert witness on the subject of tool mark identification. He testified that the cash register drawer Grant surrendered to the police had been removed from the broken cash register found on the floor of the pool hall. Mason also stated that the pry marks on the cash register drawer were made by the scissors that were found in the woods behind the pool hall.
. . . .
Carol Palmer, a forensic scientist employed by the Virginia Department of Forensic Science, qualified as an expert witness on DNA testing. Palmer extracted human DNA from two places on the scissors, on a blade near the tip and on a blade near the finger loops. She also extracted blood from three small circular areas on the left front side of Lovitt’s jacket, but the DNA tests were inconclusive and Palmer was unable to determine whether the blood on the jacket was human. . . .
. . . The DNA extracted from the tip of the scissors displayed a DNA profile that matched the DNA profile of Dicks. The profile derived from this sample did not match the DNA profiles of either Lovitt or Grant, thus eliminating both as contributors of this DNA. Palmer stated that the chance of someone other than Dicks contributing the DNA sample on the tip of the scissors was 1 in more than 5.5 billion.
The DNA extracted from the mid-section of the scissors also matched the DNA profile of Dicks. However, Palmer stated that this DNA evidence, unlike the DNA evidence from the tip of the scissors, did not exclude either Lovitt or Grant and, thus, was inconclusive as to them.
After Lovitt’s arrest, he was incarcerated in the Arlington County Jail in the same unit as Casel Lucas. Lovitt and Lucas developed a friendship during the two months that they lived together in this unit. Lovitt first told Lucas that after leaving the bathroom at the pool hall on the night of the murder, Lovitt saw a Hispanic man stabbing Dicks. Lovitt told Lucas that, at that time, Lovitt saw the cash register drawer, grabbed it, and ran from the pool hall.
According to Lucas, Lovitt later stated that he knew Dicks and was aware that no one else would be in the pool hall late at night. Lovitt further related that he waited in the bathroom until everyone left the pool hall before coming out of the bathroom to attempt to open the cash register drawer. Dicks confronted Lovitt as he unsuccessfully attempted to open the cash drawer. Lovitt told Lucas that he had to kill Dicks because Dicks had recognized him. According to Lovitt, Dicks asked him, “[W]hy [are] you doing this?” Lovitt admitted to Lucas that he stabbed Dicks several times and took the cash register drawer to his cousin’s house where he and his cousin split the money before leaving to buy some drugs. Lovitt told Lucas that he discarded the murder weapon while en route to or from Grant’s house, and that he changed his clothes at Grant’s house because he had blood on his shirt and pants.
. . . .
During the penalty phase of the trial, the Commonwealth presented evidence of Lovitt’s criminal record. In October 1975, when Lovitt was 11 years old, he was charged with assault and placed in protective supervision. Also as a juvenile, in August 1979, Lovitt was committed to the Beaumont Learning Center of the State Department of Corrections (Beaumont) based on adjudication of charges of breaking and entering and larceny. While at Beaumont, Lovitt was disciplined for fighting, assault, and possessing contraband items. After his release from Beaumont in 1980, Lovitt was convicted of grand larceny in 1981 and was sentenced to 12 months in jail.
Between 1983 and 1985, Lovitt was convicted of petit larceny, grand larceny, breaking and entering, and distribution of marijuana. In 1986, Lovitt was convicted of attempted robbery and was sentenced to a term of imprisonment of from one to three years. After being released on parole in August 1987, Lovitt’s parole was revoked in August 1988 based, in part, on additional arrests and his failure to pass certain drug tests. Lovitt later was convicted of statutory burglary and grand larceny. While incarcerated on these convictions and the parole violation, Lovitt was disciplined for damaging property and for fighting.
In September 1990, Lovitt again was released on parole. In early 1991, Lovitt was convicted of possession of cocaine, grand larceny, and burglary. While incarcerated on these charges, Lovitt was the subject of ten disciplinary actions for offenses including possession of contraband, disobeying direct orders, assault, possession of intoxicants, and manufacturing “shank handles.” After being released on parole in October 1996, Lovitt was convicted in 1997 of possession of marijuana, petit larceny, unlawful entry, assault and battery, and destruction of property. Lovitt was on parole at the time of the present offenses.
In October 1998, Arlington County Police Officer Jerome A. Lee detained Lovitt in an apartment parking lot in Arlington. Lovitt had parked his car behind the apartments, appeared to be very nervous, and consented to a search of his vehicle. Lee found a long kitchen knife on the floor of the passenger area and a soda can used to smoke crack cocaine in the rear floor area of the vehicle.
Lovitt presented testimony from his sister, [Lamanda] Jones, who testified that Lovitt was the oldest of 12 children and that he helped take care of his younger siblings, although not “gladly.” Lovitt also presented testimony from four deputies employed by the Arlington County Sheriff’s Office, who stated that Lovitt had not presented any disciplinary problems while being held in jail on the present charges.
Id. at 502-08, 537 S.E.2d at 870-73.
In May 2001, about six months after we affirmed Lovitt’s convictions, the circuit court entered an order authorizing destruction of the exhibits entered into evidence at Lovitt’s trial. Pursuant to the destruction order, all exhibits received in evidence at trial, with the exception of one chart, were destroyed. On October 1, 2001, the United States Supreme Court denied Lovitt’s petition for a writ of certiorari from this Court’s judgment. See Lovitt v. Virginia, 534 U.S. 815 (2001).
II. STANDARD OF REVIEW
When we consider a circuit court’s findings of fact and recommended conclusions of law submitted pursuant to Code ? 8.01-654(C), we defer to the court’s factual findings and are bound by them unless they are plainly wrong or without evidentiary support. Hedrick v. Warden, 264 Va. 486, 496, 570 S.E.2d 840, 847 (2002). However, the circuit court’s recommended conclusions of law involve mixed questions of law and fact and are subject to our de novo review. Id.
III. HABEAS HEARING
At the habeas hearing, Lovitt presented evidence regarding the destruction of the trial exhibits, the alleged Brady violations, and his counsel’s alleged failure to provide effective assistance at trial.
A. DESTRUCTION OF EVIDENCE
Testimony at the habeas hearing revealed that in April 2001, Robert C. McCarthy, Chief Deputy Clerk of the Circuit Court of Arlington County, drafted an order authorizing the destruction of the exhibits received in evidence at Lovitt’s trial. McCarthy, who was responsible for evidence stored in the clerk’s office, testified that he thought he was authorized to destroy the trial exhibits after receiving a mandate from this Court indicating that Lovitt’s convictions were affirmed. McCarthy also stated that he decided to destroy the trial exhibits to create additional space in the clerk’s office evidence room.
McCarthy drafted the evidence destruction order without consulting anyone in the Commonwealth’s Attorney’s office, the Attorney General’s office, or the Arlington County Police Department. McCarthy also did not notify any of the circuit court judges, Lovitt’s trial counsel, or his habeas counsel of the impending evidence destruction.
McCarthy drafted the order before May 2, 2001, the date that Code ?? 19.2-270.4:1 and –327.1 became effective. Code ? 19.2-270.4:1 provides, in relevant part:
B. In the case of a person sentenced to death, the court that entered the judgment shall, in all cases, order any human biological evidence or representative samples to be transferred by the governmental entity having custody to the Division of Forensic Science. The Division of Forensic Science shall store, preserve, and retain such evidence until the judgment is executed. . . .
. . . .
E. An action under this section or the performance of any attorney representing the petitioner under this section shall not form the basis for relief in any habeas corpus or appellate proceeding.
With regard to such human biological evidence, Code ? 19.2-327.1 provides, in relevant part:
A. Notwithstanding any other provision of law or rule of court, any person convicted of a felony may, by motion to the circuit court that entered the original conviction, apply for a new scientific investigation of any human biological evidence related to the case that resulted in the felony conviction . . . .
. . . .
G. An action under this section or the performance of any attorney representing the petitioner under this section shall not form the basis for relief in any habeas corpus proceeding or any other appeal.
McCarthy took the destruction order prepared in Lovitt’s case, along with between 15 and 20 other such orders, to the chambers of Judge Paul F. Sheridan. McCarthy left the orders in Judge Sheridan’s chambers for entry without providing him any information concerning the relevant cases. Judge Sheridan, who did not conduct Lovitt’s trial, entered the destruction orders on May 21, 2001, authorizing the destruction of all exhibits entered into evidence at Lovitt’s trial. These exhibits, with the exception of the one chart, were destroyed a few days later.
Two deputy court clerks, Clifford P. Kleback and Gwendolyn Gilmore, testified that they spoke with McCarthy before he submitted the destruction orders to Judge Sheridan. Both deputy clerks told McCarthy, who was their immediate supervisor, that he should not destroy the evidence in Lovitt’s case because it was a “capital case” and Lovitt had not been executed. Kleback, who was the clerk assigned to the courtroom during Lovitt’s trial, stated that he told McCarthy that the case involved DNA evidence, and that he repeatedly advised McCarthy not to destroy the evidence.
Both Kleback and Gilmore testified that McCarthy told them that the evidence could be destroyed because Lovitt’s appeal had ended. Kleback and Gilmore deferred to McCarthy’s decision and, at that time, did not report these conversations to either the clerk of the circuit court or to anyone in the prosecutor’s office.
McCarthy testified that he did not recall speaking with Kleback and Gilmore before the evidence in Lovitt’s case was destroyed. McCarthy also stated that he did not review Lovitt’s case file to determine whether Lovitt’s appellate remedies were exhausted but instead relied on this Court’s mandate affirming Lovitt’s convictions. According to McCarthy, when he drafted the destruction order, he may have known that Lovitt’s case was a “capital murder case,” but he was unaware that it was a “death penalty case.” He further testified that at the time the destruction order was entered, he was not aware of any change in the law concerning the preservation of human biological evidence.
The circuit court found that there was no evidence that any official of the Commonwealth acted in bad faith or with the intent to destroy exculpatory evidence. The court stated in its findings that “McCarthy believed he had the authority to destroy the trial exhibits once he received the mandate” from this Court. The court also found that although Code ? 19.2-270.4:1 became effective 20 days before entry of the destruction order, McCarthy was unaware of the statute’s provisions when the evidence was destroyed.
B. BRADY CLAIMS
1. DR. PIERRE-LOUIS
Dr. Marie-Lydie Y. Pierre-Louis was the medical examiner who performed the autopsy on Clayton Dicks. Among those present during the autopsy were Assistant Commonwealth’s Attorney Margaret E. Lair-Eastman (Eastman), one of the prosecuting attorneys at Lovitt’s trial, and Detective Stuart Chase of the Arlington County Police Department.
During the autopsy, Dr. Pierre-Louis was shown two pairs of scissors recovered from a container next to the cash register near the location where Dicks’ body was found. Dr. Pierre-Louis was not shown the orange-handled pair of scissors found with blood on the blade tip (the bloody scissors), discovered in the woods behind the pool hall and admitted into evidence at Lovitt’s trial.
The autopsy report prepared by Dr. Pierre-Louis indicated that each of Dicks’ six stab wounds displayed a blunt and a sharp edge. The wounds ranged in depth between three and eight inches, and three of these wounds were between six and eight inches deep.
The autopsy report further indicated that one of the pairs of scissors examined by Dr. Pierre-Louis had a total length of eight-and-one-half inches with blades that were three-and-one-half inches long and one-half inch wide at the base. The other pair of scissors she examined was six-and-one-half inches in length and had blades that were three inches long and one-half inch wide at the base.
At the autopsy, Dr. Pierre-Louis told Eastman and Detective Chase that neither of the two pairs of scissors that she examined could have been the murder weapon because the length and width of their blades were not consistent with the nature and dimensions of Dicks’ stab wounds. Dr. Pierre-Louis also told Eastman and Chase that she would have to examine the bloody scissors before she could reach a conclusion whether those scissors were the source of Dicks’ wounds.
Dr. Pierre-Louis’ opinion concerning the two pairs of scissors she examined was not included in the autopsy report. Neither Eastman nor anyone else in the prosecutor’s office informed Lovitt’s trial counsel of Dr. Pierre-Louis’ opinion. During Lovitt’s trial, Dr. Pierre-Louis was not asked to give her opinion concerning the two pairs of scissors that she had examined, nor was she asked to opine whether the bloody scissors admitted into evidence were consistent with Dicks’ stab wounds.
At the habeas hearing, Dr. Pierre-Louis testified that she is an “expert on the wounds on the body” and that part of her expertise includes determining “whether an object is consistent with a wound.” Dr. Pierre-Louis stated that each of Dicks’ stab wounds had both a blunt and a sharp edge, indicating that a “single-edged blade” was used to cause those wounds.
Dr. Pierre-Louis was shown a photograph of the bloody scissors found in the woods near the pool hall. Using a measurement scale depicted in the photograph, she determined that one blade was three-and-one-half inches long from its tip to the base where the two blades are joined, and that this blade was one-half inch wide at the base. She was unable to measure the other blade because of its position in the photograph.
Dr. Pierre-Louis testified that the bloody scissors shown in the photograph were inconsistent with Dicks’ wounds. She stated that three of those wounds, which measured between six and eight inches in depth, were deeper than the length of the three-and-one-half inch blade. She also stated that while the other three wounds, which ranged between three and five inches in depth, were “more or less” consistent with the length of the blade, the wounds were twice as wide as the width of the blade.
Dr. Pierre-Louis further testified that if the blade had been completely inserted into Dicks’ body, she would have expected to discover a “notch” from the other blade or a contusion from the scissors’ handle in the immediate vicinity of the stab wounds. However, she did not discover any evidence of such “marginal abrasions” near Dicks’ wounds. Dr. Pierre-Louis completely discounted “tissue compression” as an explanation for the discrepancy between the scissors’ blade length and Dicks’ wounds because of the lack of “marginal abrasions” in the wound areas. She stated that the discovery of Dicks’ blood on the scissors would not influence her opinion that those scissors are inconsistent with Dicks’ wounds because she does not know how the blood was transferred to those scissors.
On cross-examination, Dr. Pierre-Louis testified that she never examined the bloody scissors depicted in the photograph and was unable to determine the thickness of the blades or whether their outside edges were sharp. Contrary to her testimony on direct examination, she conceded that it was possible that a single blade of the scissors depicted in the photograph could have caused the three stab wounds that measured between three and five inches deep.
Both Detective Chase and Deputy Commonwealth’s Attorney Barbara Walker, one of the prosecuting attorneys at Lovitt’s trial, testified that the bloody scissors were different in size from the two pairs of scissors presented to Dr. Pierre-Louis. Detective Chase also testified that he contacted Dr. Pierre-Louis after the autopsy and informed her that the police had recovered a certain pair of scissors that he concluded was the murder weapon, which he described to her. He stated that when he described the bloody scissors to Dr. Pierre-Louis, “she made some comment that, I guess I was wrong, or, I made a mistake.”
Eastman testified that when she told Dr. Pierre-Louis after the autopsy that Dicks’ blood had been identified on the bloody pair of scissors, Dr. Pierre-Louis shrugged and responded, “oh well.” Eastman interpreted Dr. Pierre-Louis’ response as a departure from her previous opinion and an abandonment of “any notion that scissors could not be the murder weapon.”
Eastman testified that Lovitt’s counsel had a copy of the autopsy report and had access to the physical evidence in the case, including the bloody scissors. She further testified that she did not consider Dr. Pierre-Louis’ opinion concerning the two pairs of scissors to be exculpatory because neither pair was the murder weapon presented at trial.
Denman Rucker, one of Lovitt’s trial attorneys, testified at the habeas hearing that the trial evidence concerning the bloody scissors “actually worked to [his] benefit” during trial, and allowed him to assert that an unknown assailant had perpetrated the crimes, which was the “strongest argument” available for Lovitt’s defense. Rucker explained that this evidence also allowed him to avoid having the jury infer that Lovitt brought a deadly weapon with him to the pool hall.
The circuit court made a factual finding that after DNA test results confirmed the presence of Dicks’ blood on the bloody scissors, “Dr. Pierre-Louis indicated to the Commonwealth’s attorneys that she had been wrong in her conclusion regarding the scissors.” The court also found that Lovitt’s defense counsel had access to the bloody scissors, the autopsy report, and to Dr. Pierre-Louis prior to Lovitt’s trial.
Based on additional testimony by Denman Rucker, the circuit court also found that Rucker had recognized the differences in the blade lengths of the scissors listed in the autopsy report and the depth of Dicks’ wounds and, as a result, had consulted with an expert at the Northern Virginia Forensic Laboratory. Rucker further testified that the expert informed him that a pair of scissors with a blade measuring between three-and-one-half and four-and-one-half inches in length could inflict a wound up to seven inches deep during a “frenzied” and “violent” attack based on a victim’s breathing and the compression of body tissue. The court found that the expert informed Rucker that such scissors could have been the murder weapon.
2. CASEL LUCAS
a. LUCAS’ PRIOR COOPERATION WITH AUTHORITIES
Before Lucas testified at trial, Eastman and Walker provided Lovitt’s defense counsel with a report detailing Lucas’ extensive criminal record. However, nei
ther Eastman nor Walker disclosed to defense counsel that Lucas had provided information to various police departments in four previous criminal cases. The circuit court found that before the trial, the prosecutors in Lovitt’s case were “unaware that Casel Lucas had provided information regarding any other case.”
The evidence at the habeas hearing showed that in 1998, Lucas testified in Alexandria against Steven Evans, who had been charged with robbery. In exchange for his testimony, Lucas received a total recommended sentence of 20 years’ imprisonment for various pending criminal charges, including robbery, abduction with the intent to defile, and attempted rape.
Walker testified that although Lucas told her about his cooperation with the police in the Evans case, she did not tell either Rucker or Janell Wolfe, Lovitt’s co-counsel at trial, about Lucas’ role in that prosecution. However, Walker stated that Lucas’ sentence in the Evans case was included in his criminal record that the prosecution provided to defense counsel before Lucas testified.
When Wolfe interviewed Lucas prior to his testifying, Lucas told her of his involvement in the Evans case. However, Lucas did not inform Wolfe that he had cooperated with the police in any other cases. Wolfe testified that had she received such information, she and Rucker would have used it to impeach Lucas’ credibility at trial. At Lovitt’s trial, Rucker cross-examined Lucas concerning his cooperation with the police in the Evans case.
In 1996, Lucas provided information to the police concerning a “jailhouse confession” made by Edward Young, who had been charged with rape in Arlington County. Walker served as the prosecutor during the sentencing in the Young case and Wolfe served as Young’s counsel. However, neither Walker nor Wolfe was aware of Lucas’ involvement in the Young case because the case did not proceed to trial and the defendant’s plea agreement did not mention Lucas. Lucas did not receive any benefit in exchange for the information that he provided in the Young case.
In 1997, Lucas provided information to detectives in the District of Columbia concerning the “Starbucks triple homicide” case. One of the detectives sent a letter to the judges of the Circuit Court of the City of Alexandria informing them of Lucas’ cooperation in the Starbucks case. There was no evidence that Lucas received any benefit resulting from his cooperation with the police in that case. Further, prior to Lovitt’s trial, the Arlington prosecutors did not have any information about Lovitt’s cooperation in the Starbucks case.
In 1998, Lucas provided Alexandria authorities with a statement detailing a defendant’s “jailhouse confession” in the “Eddie Lee case.” Lucas did not receive any benefit as a result of his cooperation in that case, and the Arlington prosecutors were not aware of Lucas’ involvement in the Lee case prior to Lovitt’s trial.
In June 1999, before Lovitt’s trial, Lucas sent a letter to Judge Paul F. Sheridan of the Arlington County Circuit Court requesting reconsideration of one of his sentences. In the letter, Lucas stated that he had cooperated with the police in previous matters but did not mention Lovitt’s case. The letter was sent directly to Judge Sheridan’s chambers and a copy of the letter apparently was not placed in Lucas’ file until after Lovitt’s trial. Lucas’ request for reconsideration was denied. The prosecutors in Lovitt’s case were not aware of Lucas’ letter at the time of Lovitt’s trial.
b. LUCAS’ PRIOR INCONSISTENT STATEMENTS
At the habeas hearing, the court considered an affidavit handwritten by Lovitt’s habeas counsel and signed by Lucas in September 2001. The affidavit, which was prepared after Lovitt’s trial, contained several statements that conflicted with Lucas’ trial testimony. For example, in the affidavit, Lucas stated that he initially informed the prosecutors that Lovitt had stated he used a gun to shoot Dicks, that Lovitt had discarded the weapon in a drain, and that Warren Grant had driven Lovitt from the pool hall to Grant’s house. These statements contradicted Lucas’ trial testimony that Lovitt stated he used a knife or other object to stab Dicks, and that he discarded the weapon while walking from the pool hall to Grant’s house.
In the affidavit, Lucas also stated that he received a reduced sentence for his cooperation in the Young case, and that he learned about the details of Dicks’ murder from “Crime Stoppers” and the Washington Post. At habeas counsel’s request, Lucas had “initialed” each paragraph of the affidavit.
Lucas testified that the inconsistent statements contained in the affidavit were not accurate and that his testimony during Lovitt’s trial was truthful. Lucas stated that on the day he signed the affidavit, he was “confused” after answering “three hours’ worth of questions” posed by Lovitt’s habeas counsel. Lucas also stated that he did not feel “too good” that day because he had undergone a tooth extraction and was waiting to receive some medication.
Lucas further testified that he did not thoroughly read the affidavit, but merely “glimpsed through it” and “glanced over it,” not paying attention to its content. He also testified that he was mistaken when he had stated that he received a sentence reduction in exchange for his cooperation in the Young case. Additionally, Lucas stated that Lovitt was his sole source of information concerning the testimony he gave at Lovitt’s trial.
Eastman testified that Lucas’ trial testimony was consistent with the statements he had made before Lovitt’s trial. She stated that Lucas’ description of Lovitt’s initial story was consistent with a statement that Lovitt had given to the police shortly after his arrest. Included in Lovitt’s initial story to Lucas were assertions that Lovitt was in the pool hall restroom during Dicks’ murder, and that he took the cash register drawer after an allegedly unknown assailant had killed Dicks.
The circuit court found that Lucas had “disavowed” the affidavit written by Lovitt’s habeas counsel that had set forth the inconsistent statements Lucas allegedly had made before trial. The court also found that Lucas did not make any statements before trial that were inconsistent with his trial testimony.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Two of Lovitt’s stepsisters and a cousin testified at the habeas hearing about Lovitt’s family background. We will describe that testimony in detail in Part IV(C), infra, of our discussion which addresses the issue whether Lovitt received effective assistance of counsel at trial. In that discussion, we will also describe the various jail, substance abuse, juvenile, and other records introduced into evidence at the habeas hearing.
Rucker and Wolfe testified at the habeas hearing that they were concerned that if the jury was told about the criminal records and substance abuse of Lovitt’s siblings and stepfather, the jury could conclude that Lovitt’s family background increased his future danger to society. Wolfe also stated that she asked Lamanda Jones to testify on Lovitt’s behalf and spoke with her for between “45 minutes or an hour” before presenting her as a witness in the penalty phase proceeding. Wolfe explained that Jones testified regarding “exactly what we wanted her to get on the stand and say,” and that Jones’ testimony “humanized” Lovitt by showing the jury that he had a family.
With regard to the guilt phase of the trial, the circuit court found that defense counsel made a tactical decision not to pursue additional DNA testing of the bloody scissors and Lovitt’s jacket, which allowed counsel to argue that an unknown assailant killed Dicks. The court concluded that Rucker’s investigation into the discrepancy between the length of the scissors and the depth of Dicks’ stab wounds yielded information from an expert that scissors of the specified dimensions could have caused such wounds. The court also found that Wolfe interviewed Lu
cas and obtained his criminal record prior to his testifying at Lovitt’s trial.
With regard to the penalty phase of the trial, the circuit court found that trial counsel adopted a strategy for the penalty phase that focused on efforts to “humanize” Lovitt and to show that he would not be dangerous in the penitentiary by emphasizing his good behavior while he was incarcerated awaiting trial. The court also found that in preparation for trial, Rucker and Wolfe obtained “all of Lovitt’s jail records from the Arlington County Detention Facility, all of his juvenile records, his records from the Beaumont juvenile facility, his medical records, and his pre-sentence report.”
The court further found that both Rucker and Wolfe were aware of the criminal history of Lovitt’s family members from having represented some of his siblings in prior criminal proceedings, and from their “general reputation in the community” of having a “predilection for criminal activity.” The court found that trial counsel made a strategic decision not to introduce evidence of Lovitt’s family background, and that the social services records of Lovitt’s siblings would not have assisted defense counsel in preparing for the penalty phase of the trial. In addition, the court found that Lovitt had not given trial counsel any indication that he had been a victim of sexual or physical abuse by his stepfather.
A. DESTRUCTION OF EVIDENCE
Lovitt argues that McCarthy, an agent of the Commonwealth, procured the destruction of the trial exhibits in bad faith, and that the destruction of this evidence violated his right of due process by preventing meaningful review of his habeas corpus petition. Lovitt also observes that under Code ?? 19.2-270.4 and –270.4:1, trial evidence may not be destroyed until after all appellate remedies have been exhausted, and that DNA evidence in a death penalty case may not be destroyed until the final judgment is executed. He asserts that the death penalty is “not a reliably appropriate punishment” under circumstances when material evidence has been destroyed and that, therefore, his sentence should be vacated. We disagree with Lovitt’s arguments.
We first address Lovitt’s due process claim. He asserts that he is entitled to habeas corpus relief because he has been deprived of an opportunity to seek new scientific testing of the DNA found on the bloody scissors and his jacket. Lovitt asserts that this testing is necessary for him to seek a writ of actual innocence under Code ?? 19.2-327.2 through –327.6. However, he fails to present authority to support his claim that habeas corpus relief is the proper remedy for his inability to obtain this further testing. He further acknowledges that the United States Supreme Court has not addressed the question whether due process rights may be asserted against the post-trial destruction of evidence.
In the absence of such authority, Lovitt relies on Arizona v. Youngblood, 488 U.S. 51 (1988), and California v. Trombetta, 467 U.S. 479 (1984), in which the Supreme Court considered due process claims involving the pre-trial destruction of evidence. In Youngblood, the Supreme Court drew a distinction between the government’s failure to disclose material exculpatory evidence and the failure to preserve potentially exculpatory evidence. The Court explained that:
The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. . . . We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant. We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.
488 U.S. at 57-58; see also Trombetta, 467 U.S. at 489; Thomas v. Commonwealth, 244 Va. 1, 18, 419 S.E.2d 606, 615-16 (1992).
This constitutional standard of materiality, decided in the context of a state’s pre-trial destruction of evidence, reflects the importance courts attach to the integrity of the trial process and to the ability of an accused to defend against criminal charges brought against him. See Trombetta, 467 U.S. at 485. Therefore, during the course of a criminal trial, the Due Process Clause of the Fourteenth Amendment requires that the government satisfy such prevailing concepts of fundamental fairness. See id.
In a habeas corpus proceeding, however, the truth-seeking function of the trial process yields to a focus on the legality of a petitioner’s detention and whether the petitioner presently is detained in violation of any constitutional rights. See Virginia Parole Bd. v. Wilkins, 255 Va. 419, 420-21, 498 S.E.2d 695, 696 (1998); McClenny v. Murray, 246 Va. 132, 134-35, 431 S.E.2d 330, 331 (1993); Smyth v. Holland, 199 Va. 92, 96-97, 97 S.E.2d 745, 748-49 (1957). This different focus raises the issue whether a due process right may be asserted in a habeas corpus proceeding to challenge the post-trial destruction of evidence when a petitioner’s trial and direct appeal have concluded.
We need not resolve this issue in the present case, however, because Lovitt fails to establish that he qualifies for relief under the Youngblood standard that he asks us to apply. Therefore, for purposes of this petition only, we will assume, without deciding, that a habeas petitioner may assert a due process claim regarding the post-trial destruction of evidence, and that the Youngblood standard governing pre-trial destruction of evidence also applies to a due process claim involving evidence destroyed post-trial.
As provided above, under the Youngblood standard, a state’s failure to preserve potentially useful evidence does not constitute a denial of due process unless a defendant can show bad faith on the part of the state. Youngblood, 488 U.S. at 58; United States v. Newsome, 322 F.3d 328, 334 (4th Cir. 2003); Basden v. Lee, 290 F.3d 602, 615 (4th Cir. 2002), cert. denied, 537 U.S. 980 (2002); Thomas, 244 Va. at 18, 419 S.E.2d at 615. The presence or absence of bad faith by the state depends on whether agents of the state had knowledge of the exculpatory value of the evidence when it was lost or destroyed. Youngblood, 488 U.S. at 56 n.*; Holdren v. Legursky, 16 F.3d 57, 60 (4th Cir. 1994). Thus, the possibility that evidence could have exculpated a defendant depending on future testing results is not enough to satisfy the constitutional standard of materiality. See Youngblood, 488 U.S. at 56 n.*.
In the present case, the circuit court concluded that “[t]here [was] no evidence that any official of the Commonwealth acted in bad faith.” The court also found that “[t]here [was] no evidence to conclude that there was an intent by anyone in the Clerk’s office to destroy exculpatory evidence.” The court further found that while Robert McCarthy’s judgment was erroneous, he “wanted to remove the box of exhibits from the evidence room to make additional space,” and he “believed he had the authority to destroy the trial exhibits once he received the mandate indicating that Lovitt’s appeal to the Virginia Supreme Court had been denied.”
The circuit court’s determination that there was an absence of bad faith was a finding of fact, not of law, because that finding rested on the knowledge of the Commonwealth’s agents concerning the exculpatory value of the evidence at the time it was destroyed. See id.; Holdren, 16 F.3d at 60; Thomas, 244 Va. at 18, 419 S.E.2d at 615-16. Such factual findings made by the circuit court are entitled to deference and are binding in this proceeding unless they are plainly wrong or without evidence to support them. Hedrick, 264 Va. at 496, 570 S.E.2d at 847.
The circuit court’s findings concerning the absence of bad faith are supported by the evidence and are not plainly wrong. McCarthy’s actions, and the failure of Kleback and Gilmore to report his intentions to another supervisor, do not establish that an agent of the Commonwealth had knowledge of any exculpatory value of the trial exhibits at the time they were destroyed. See Youngblood, 488 U.S. at 56 n.*; Holdren, 16 F.3d at 60. The mere fact that the exhibits included DNA evidence, and that Kleback may have related this information to McCarthy, does not establish that McCarthy was aware that an analysis of some of the DNA evidence had produced inconclusive results, or that such evidence may have been subject to further testing. Moreover, even if McCarthy had been aware of these considerations, such awareness would not have met the constitutional standard of materiality under Youngblood, because Lovitt can assert no more than the mere possibility that further testing could have exculpated him. See Youngblood, 488 U.S. at 56 n.*.
In addition, the circuit court found that at the time the evidence was destroyed, McCarthy was unaware that Code ? 19.2-270.4:1, enacted 20 days before the destruction order was entered, mandated the storage of human biological evidence received in the case of a person sentenced to death. McCarthy’s testimony adequately supports this finding.
The circuit court made an additional factual finding that no employees of either the Commonwealth’s Attorney or the Attorney General knew about the destruction of evidence until after the destruction occurred. This finding is supported by the testimony of Margaret Eastman, Barbara Walker, and McCarthy. The record also shows that Judge Paul F. Sheridan, who entered the evidence destruction order, had not presided over Lovitt’s trial. Therefore, we hold that the record lacks any evidence that an agent of the Commonwealth acted in bad faith with regard to the destruction of the trial exhibits.
We turn now to consider Lovitt’s claim that he is entitled to habeas corpus relief because the destruction of the trial exhibits violated Code ?? 19.2-270.4 and –270.4:1. Code ? 19.2-270.4(A) provides, in relevant part:
Except as provided in ? 19.2-270.4:1 and unless objection with sufficient cause is made, the trial court in any criminal case may order the donation or destruction of any or all exhibits received in evidence during the course of the trial (i) at any time after the expiration of the time for filing an appeal from the final judgment of the court if no appeal is taken or (ii) if an appeal is taken, at any time after exhaustion of all appellate remedies.
In the case of a person sentenced to death, Code ? 19.2-270.4:1(B) requires the Commonwealth to store, preserve, and retain any human biological evidence, or representative samples thereof, until the judgment is executed. This statute also provides that any noncompliance with the terms of the statute “shall not form the basis for relief in any habeas corpus or appellate proceeding.” Code ? 19.2-270.4:1(E).
In enacting Code ?? 19.2-270.4 and –270.4:1, the General Assembly provided for both the retention of trial evidence, including evidence containing DNA, and the ultimate disposal of such evidence when all appellate remedies have been exhausted and judgment has been executed. Such procedures protect the efficacy of the appellate process, as well as the need to preserve evidence for use in the event of a retrial or other proceeding allowed by law. However, in stating the procedural requirements relating to the retention of human biological evidence in Code ? 19.2-270.4:1, the General Assembly also recognized that noncompliance with those procedures may occur and provided statutory language plainly excluding any such noncompliance as a basis for appellate or habeas corpus relief.
Based on this unambiguous statutory proscription, we find no merit in Lovitt’s contention that the Commonwealth’s failure to comply with either statute’s provisions relating to human biological evidence presented at his trial entitles him to habeas corpus relief. Thus, we hold that Lovitt has failed to advance any valid basis for habeas corpus relief arising from the destruction of the trial exhibits in his case.
B. BRADY CLAIMS
Lovitt argues that the Commonwealth failed to disclose certain exculpatory evidence before trial. He contends that Dr. Pierre-Louis’ comments at the autopsy concerning the scissors she examined were exculpatory, and that the Commonwealth’s failure to disclose this information prejudiced him because these comments directly contradicted the Commonwealth’s theory that Dicks was murdered with a pair of scissors. Lovitt also argues that the Commonwealth was required to disclose evidence of Lucas’ allegedly inconsistent prior statements and his cooperation with different law enforcement authorities, and asserts that such information could have been used to attack Lucas’ credibility at trial.
In response, the warden argues that Dr. Pierre-Louis’ comments were not exculpatory because she did not examine the bloody scissors that were admitted at trial and those scissors were different in size from the two pairs of scissors she actually examined. The warden also asserts that Casel Lucas did not make any prior inconsistent statements that should have been disclosed by the Commonwealth, and that the Commonwealth was not required to disclose Lucas’ cooperation in other criminal cases of which the Commonwealth was unaware at the time of Lovitt’s trial.
We review these claims under settled constitutional principles concerning the disclosure of exculpatory evidence. In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that a due process violation occurs when the prosecution suppresses evidence favorable to an accused that is material either to guilt or to punishment, irrespective whether the prosecution acted in good faith or bad faith. Id. at 87; see also Strickler v. Greene, 527 U.S. 263, 280 (1999); Kyles v. Whitley, 514 U.S. 419, 432 (1995); Soering v. Deeds, 255 Va. 457, 464, 499 S.E.2d 514, 517 (1998); Bowman v. Commonwealth, 248 Va. 130, 133, 445 S.E.2d 110, 111 (1994).
Exculpatory evidence is material if there is a reasonable probability that the proceeding would have resulted in a different outcome had the evidence been disclosed to the defense. Strickler, 527 U.S. at 280; Kyles, 514 U.S. at 433; United States v. Bagley, 473 U.S. 667, 682 (1985); Cherrix v. Commonwealth, 257 Va. 292, 302, 513 S.E.2d 642, 649, cert. denied, 528 U.S. 873 (1999); Soering, 255 Va. at 464, 499 S.E.2d at 517; Bowman, 248 Va. at 133, 445 S.E.2d at 112. A “reasonable probability” is one that is sufficient to undermine confidence in the outcome of the proceeding. Kyles, 514 U.S. at 434; Bagley, 473 U.S. at 682; Soering, 255 Va. at 464, 499 S.E.2d at 517; Bowman, 248 Va. at 133, 445 S.E.2d at 112. At the heart of this inquiry is a determination whether the evidence favorable to the defendant could reasonably be considered as placing the entire case in such a different light that confidence in the verdict is undermined. Strickler, 527 U.S. at 290; Kyles, 514 U.S. at 435.
The Brady disclosure requirements extend to information that can be used to impeach a witness’ credibility. Strickler, 527 U.S. at 282 n.21; Bagley, 473 U.S. at 676; Bramblett v. Commonwealth, 257 Va. 263, 276, 513 S.E.2d 400, 409, cert. denied, 528 U.S. 952 (1999); Goins v. Commonwealth, 251 Va. 442, 456, 470 S.E.2d 114, 124, cert. denied, 519 U.S. 887 (1996). A prosecutor’s suppression of impeachment evidence creates a due process violation only if the suppression deprives the defendant of a fair trial under the Brady standard of materiality. Bagley, 473 U.S. at 678; see McDowell v. Dixon, 858 F.2d 945, 949 (4th Cir. 1988).
This due process analysis requires consideration on an item-by-item basis whether the evidence at issue was exculpatory. Kyles, 514 U.S. at 436 n.10; United States v. Ellis, 121 F.3d 908, 916 (4th Cir. 1997). However, the determination whether undisclosed exculpatory evidence was material must be made by considering its cumulative effect. Kyles, 514 U.S. at 436 n.10; Monroe v. Angelone, 323 F.3d 286, 302 (4th Cir. 2003); Ellis, 121 F.3d at 916.
We first consider Dr. Pierre-Louis’ comments made at the autopsy that the two pairs of scissors she was shown were not consistent with Dicks’ wounds. As stated above, both Detective Chase and Barbara Walker testified that these scissors were not the same size as the bloody scissors, which were the scissors introduced at trial. In addition, after the bloody scissors were subjected to DNA testing, which showed that Dicks’ blood was on the tip of the scissors, Dr. Pierre-Louis told Detective Chase that she had been wrong in her earlier conclusion regarding the pairs of scissors she examined.
We conclude that Dr. Pierre-Louis’ opinion concerning the scissors presented at the autopsy was not exculpatory evidence because that opinion related to scissors that were not introduced into evidence, were not the alleged murder weapon, and were not shown to be the same size as the alleged murder weapon. Her initial opinion also was not exculpatory in light of the circuit court’s factual finding, supported by the testimony of Detective Chase, that Dr. Pierre-Louis changed her opinion before trial. Therefore, we hold that the prosecution was not required to provide the defense information concerning Dr. Pierre-Louis’ initial opinion stated at the autopsy.
Because Dr. Pierre-Louis’ statement was not exculpatory, we are not required to consider the issue of the materiality of that evidence. Nevertheless, we observe that the Commonwealth’s failure to disclose this information could not have prejudiced Lovitt’s defense because Dr. Pierre-Louis conceded at the evidentiary hearing in the present case that two of Dicks’ fatal wounds, designated on the autopsy report as wounds #2 and #3, could have been caused by the bloody scissors. This acknowledgement that the bloody scissors could have been the source of two of Dicks’ fatal wounds completely negates Lovitt’s claim that there is a reasonable probability that his trial would have resulted in a different outcome if Dr. Pierre-Louis’ initial opinion had been provided to the defense.
In addition, as the circuit court found, the evidence in the present case showed that trial counsel Denman Rucker investigated before trial whether the scissors like those presented at the autopsy could have caused Dicks’ wounds. Upon consultation with a forensic expert, Rucker was told that scissors of that approximate size could have caused Dicks’ wounds. Thus, Lovitt cannot show he was prejudiced by the Commonwealth’s failure to inform him of Dr. Pierre-Louis’ initial opinion, because he was aware of the issues involving scissors of that approximate size and investigated those issues as part of his defense in Lovitt’s trial.
We next consider the issue whether the Commonwealth failed to disclose material exculpatory evidence concerning Casel Lucas that could have been used to impeach his credibility at trial. Although the circuit court received evidence that Lucas had provided information to the police on several occasions, the evidence showed that on only one such occasion, the Evans prosecution in Alexandria, did Lucas receive any benefit from his cooperation with the police.
When a person has provided information to governmental agents about the commission of a crime for which he received a benefit in the disposition of criminal charges against him, this fact may be used to impeach his credibility when he testifies as a witness for the prosecution. See Giglio v. United States, 405 U.S. 150, 154-55 (1972); Cargle v. Mullin, 317 F.3d 1196, 1215-16 (10th Cir. 2003); United States v. Lee, 867 F.2d 206, 207-08 (4th Cir. 1989). However, when a person does not receive a benefit from providing such information, and later testifies as a prosecution witness, the mere fact of his prior cooperation with the governmental agents does not constitute impeachment evidence subject to disclosure as exculpatory evidence. See Collier v. Davis, 301 F.3d 843, 849 (7th Cir. 2002), cert. denied, ___ U.S. ___, 123 S.Ct. 1290 (2003); Knox v. Johnson, 224 F.3d 470, 482 (5th Cir. 2000), cert. denied, 532 U.S. 975 (2001).
Applying these principles, the Commonwealth was required to provide Lovitt’s trial counsel with information concerning Lucas’ cooperation with the police in the Evans case. Thus, when we consider below the effect of undisclosed exculpatory evidence to determine its materiality, see Kyles, 514 U.S. at 436 n.10, we must include in our analysis the Commonwealth’s failure to disclose this information about Lucas. However, because the record shows that Lucas did not receive a benefit for his cooperation in any of the other cases placed in issue by Lovitt, that cooperation did not constitute impeachment evidence subject to disclosure by the Commonwealth.
Lovitt also argues that Lucas made inconsistent statements to the police about Lovitt’s case that were subject to disclosure by the Commonwealth under the Brady rule as impeachment evidence. In support of this allegation, Lovitt relies on the affidavit prepared by habeas counsel and signed by Lucas describing inconsistent statements made by Lucas to the police prior to Lovitt’s trial. Among those statements were comments relating to the type of murder weapon, the means by which Lovitt left the scene of Dicks’ killing, and the source of Lucas’ information concerning the murder.
The circuit court found that Lucas did not make the inconsistent statements to the police detailed in the affidavit. This factual finding is supported by Lucas’ testimony that he did not read the entire affidavit prepared by habeas counsel before signing it, and that he did not agree with its contents. The circuit court’s factual finding also is supported by Margaret Eastman’s testimony that Lucas’ statements before trial were consistent with those Lovitt gave to the police when he was arrested. Because the circuit court’s finding is supported by the evidence, we conclude that Lovitt has not demonstrated that the Commonwealth failed to provide exculpatory evidence regarding statements Lucas made prior to trial.
We conclude our Brady inquiry by examining the effect of the one item of exculpatory evidence that the Commonwealth failed to disclose to Lovitt’s trial counsel, namely, the fact that Lucas had received a benefit for his cooperation with the police in the Evans case. We conclude that the failure to disclose this evidence did not place Lovitt’s trial in a posture that would undermine confidence in the verdict. See Strickler, 527 U.S. at 290; Kyles, 514 U.S. at 435. Wolfe learned this information before trial when she interviewed Lucas, and Rucker cross-examined Lucas at trial about the benefit Lucas received in the Evans case from his cooperation with the police. The jury also was informed that Lucas had been convicted of 13 felonies and was able to include this information in its assessment of Lucas’ credibility. Thus, we hold that Lovitt’s Brady claim is without merit.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Lovitt argues that his trial counsel provided ineffective assistance during both the guilt phase and the penalty phase of the trial. With regard to the guilt phase, he challenges several decisions